Director of Public Prosecutions v Fonua

[2022] VCC 908

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-21-00615
CR-21-00613

DIRECTOR OF PUBLIC PROSECUTIONS

v

TAULEVA FONUA and ASIPELIA VEA

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JUDGE:	HER HONOUR JUDGE HOGAN
WHERE HELD:	Melbourne
DATE OF HEARING:	26 and 27 April 2022
DATE OF SENTENCE:	31 May 2022
CASE MAY BE CITED AS:	DPP v Fonua & Anor
MEDIUM NEUTRAL CITATION:	[2022] VCC 908

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW

Catchwords:              Both offenders charged with causing injury intentionally – offender Fonua also charged with one charge of robbery and one charge of theft and one summary charge of committing an indictable offence whilst on bail – offender Fonua aged 29 who took active role in offending (together with a third co-offender) and Vea aged 25 took complicit role in offending - victim beaten without provocation by Fonua and another co-offender and had petrol poured over him (by third co-offender) - offender Vea shut garage door to prevent victim fleeing – gratuitous offending where victim outnumbered and taunted while beaten -

Sentence: FONUA: 3 years and 1 month’s imprisonment, with a non-parole period of 2 years. s.6AAA: 5 years’ imprisonment, with a non-parole period of 3 years and 8 months.

VEA:3 months’ imprisonment, together with a Community Correction Order of 2 years’ duration, with conditions to complete 150 hours’ unpaid community work, undergo treatment for drug dependency (including testing) and to be supervised by Community Correctional Services. s.6AAA: 2 years’ imprisonment with a non-parole period of 1 year.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Ms J Fallar	Solicitor for Public Prosecutions
For the Accused Fonua	Ms J Clark	Hannebery Law
For the Accused Vea	Ms M Brown	Gallant Law

HER HONOUR:

1Tauleva Fonua and Asipelia Vea, you have each pleaded guilty to one charge of causing injury intentionally which carries a maximum penalty of 10 years’ imprisonment. 

2Tauleva Fonua, you have also pleaded guilty to one charge of robbery which carries a maximum penalty of 10 years’ imprisonment and one charge of theft of a motor vehicle which carries a maximum penalty of 10 years’ imprisonment.  In addition, you have consented to a summary charge of committing an indictable offence while on bail being heard in this Court and have pleaded guilty to it.  The summary offence carries a maximum penalty of 3 months’ imprisonment or 30 penalty units.

3The circumstances of your offending are detailed in the summary of prosecution opening for plea (Exhibit “A”).  The victim of your offending is Mr Daniel Corcoran. He was aged 45 years when, without provocation, he was attacked by another co‑offender, Raymond Livori, after the victim walked into the garage at Mr Livori’s house on 13 February 2020.  Mr Livori has since died.  Mr Livori apparently had some grievance against the victim, believing that he was having a relationship with his girlfriend, and had requested that the victim attend his house.  Both of you were present in the garage when Mr Livori, without warning, punched the victim so hard to his mouth that the victim immediately fell to the ground. At that stage, the victim felt at least one of his teeth fall out.  Mr Livori yelled to you, Mr Vea, to shut the garage door, which you did, thereby effectively trapping the victim in the garage.  As the victim lay on the floor in a ball holding his mouth, Mr Livori stood on one side of him while you, Mr Fonua, stood on the other side of him.  Mr Livori and you, Mr Fonua, repeatedly punched and kicked the victim whilst he was incapacitated.  Although you, Mr Vea, did not personally assault the victim, you are liable for intentionally causing him injury on a complicity basis, namely, by trapping the victim in the garage after he had already been assaulted and was down on the ground and by remaining present while he was brutally attacked by your two co‑offenders.  The repeated punching and kicking of the victim by Mr Livori and Mr Fonua whilst he was lying on the ground forms the basis of Charge 1, causing injury intentionally. 

4Whilst the victim was lying on the floor of the garage being kicked and punched, you, Mr Fonua, repeatedly demanded that the victim give you his car keys. Ultimately, in the course of the assault you located them in his pocket and removed them.  This is the basis of Charge 2, robbery.  Whilst both of you were still present, Mr Livori poured petrol from a red jerry can over the top of the victim and said that he would burn him, adding “If you don’t believe me ask T” (which is your nickname, Mr Fonua).  You, Mr Fonua, then exited the garage by a rear door, taking the victim’s stolen car keys and proceeded to steal his car, in which you drove away from the premises.  This is the basis of Charge 3, theft of a motor vehicle.

5Meanwhile, the victim struggled to get up from the floor and fell onto a nearby couch.  Mr Livori then grabbed a screwdriver and stabbed him in the leg with it.  The victim then ran towards a door at the rear of the garage as he could see that Mr Livori was now holding a tomahawk or hammer.  You, Mr Vea, were still in the garage after having closed the door.  The victim’s eyes were burning from the petrol which Mr Livori had thrown over him.  He managed to grapple with Mr Livori and held up the weapon to show you, Mr Vea, that it was Mr Livori, not him, who had produced the weapon.  He then threw it on the floor and fled out the back door of the garage.  He ran to a nearby bottle shop and asked for an ambulance to be called.  The victim suffered a puncture wound to his leg, cuts to his upper lip and left eyebrow, a large hematoma to his right eye, bruising to his central forehead and back of his head and lost seven teeth as a result of blunt force trauma to his mouth. 

6Police arrived at Mr Livori’s residence to find he and his girlfriend and you, Mr Vea, leaving the street in a motor vehicle.  All three of you were intercepted.  You smelt strongly of petrol and had what appeared to be blood on your clothing and an open wound on your hand, as did Mr Livori.  Inside the garage, police could smell petrol and observed what appeared to be blood on the floor.  The washing machine was in operation and had clothes in it.  Police seized a white hooded T-shirt with what appeared to be blood stains on it from inside the washing machine. 

7When interviewed by police on the evening of the offending, you, Mr Vea, claimed that you had been drug affected at the time and had not come into contact with petrol and did not know anything about the offending.

8You, Mr Fonua, were subsequently interviewed on 9 March 2020.  In answer to the allegations, you told a host of lies, claiming that Mr Livori had been the only person to assault the victim.  You repeatedly claimed that you had tried to break up the assault and help the victim.  You said you had drunk three cups of Jack Daniels with coke prior to the incident.  You claimed that you did not know why Mr Livori had attacked the victim and did not know anything about petrol being used and were not there when petrol was poured on the victim.  You denied that you had demanded the victim’s car keys or that you had reached into his pocket to seize them.  You denied that you stole the victim’s car and told further lies of an elaborate nature detailing a route you claimed to have taken when you walked to a friend’s house nearby.

9Filed as Exhibit “B” was a Victim Impact Statement made by Mr Corcoran on 16 April 2022.  He states that he was thoroughly bashed in the face and it is clear that he had multiple front teeth knocked out, on both the top and bottom of his mouth.  A dentist had to remove some loose and broken teeth which were still in the gums.  He suffered infections in the mouth and needs dentures or implants but has not been able to afford them.  He stated he only had his new (albeit second-hand) car for one day when you Mr Fonua, stole it.  After police located it, it was returned to him in a damaged state.  The radio and CD stacker had been ripped out of it and wires from all over the car were hanging in the foot well.  Mr Corcoran stated that, at the time of the offending against him, he was healing from a breakup with the partner of 14 years and had finally been starting to gain confidence and return to work and was feeling pleased about his new car.  However, the offending has caused him to suffer anxiety attacks and become reclusive, lacking in confidence, depressed, emotional and tearful.  He feels ashamed of his appearance as his many missing teeth make him sound like he is drunk and he looks disgraceful, like a hobo.  He stated that he was a good, kind man who had honesty and integrity and he did not deserve what was done to him.  Included in the Victim Impact Statement is a photograph of the victim taken before the assault in which he looks pleasant and healthy.  In a photograph taken after the assault, his face is distorted by bruising and his missing front teeth, both top and bottom, are a startling and obvious deficit.  Close up photographs of the victim’s face in the depositions show the extent of facial bruising five days after the assault.  He has two black eyes and obvious lacerations on the forehead and around the mouth[1] and a close up of his mouth shows the gaping hole left by the lack of teeth on both the top and bottom of his jaw.[2]

[1]Page 192 of the Depositions

[2]Page 193

10Mr Fonua you are presently aged 31 years having been born in September 1990.  You come before the Court with a criminal history dating back to 2015 for a number of dishonesty offences, including a prior appearance for theft of a motor vehicle and other offences of theft, burglary, obtaining property by deception, retaining stolen goods, driving offences, possessing illicit drugs and possessing cartridge ammunition without a licence and being a prohibited person in possession of a firearm.  You also have a prior conviction for committing an indictable offence whilst on bail.  Over the years you have been given dispositions by way of a without conviction fine, a without conviction adjourned undertaking, a Community Correction Order (which you breached), and two sentences of imprisonment of 140 days and 100 days respectively.  It should be noted that those sentences of imprisonment were imposed on 25 May 2020, that is, subsequent to your offending on 13 February 2020, and relate to offences committed prior in time to your offending on 13 February 2020.  It is an aggravating feature of the offending for which I must sentence you that you were apparently on three sets of bail at the time.

11Ms Clark, who conducted a plea in mitigation on your behalf, stated that, after initially being remanded in custody following your arrests on 9 March 2020, you were granted bail on 1 October 2020 supervised by the Court Integrated Services Program (CISP).  Tendered as Exhibit “D2-1” was a report from CISP dated 21 April 2021.  It noted a history of substance abuse commencing with cannabis at age 18 and regular use of amphetamine from age 21, as well as a problematic gambling habit.  You apparently attended for a drug and alcohol assessment on 10 November 2020 and, as best I can glean, appear to have attended five counselling sessions between that date and 28 December 2020.  You were referred to a psychologist for mental health counselling but, after attending one session, decided that you did not wish to continue as you had employment and stated that you had “overcome your anxiety”.  You attended 15 appointments with your CISP case manager between 5 October 2020 and 20 April 2021, but stated that you did not have any outstanding treatment goals and no longer felt the need for case management.  Accordingly, CISP involvement in your bail ceased. 

12Ms Clark stated that you were born in Tonga, the eldest of three children.  Your parents separated when you were about 16 years old and you spent some time in Tonga with your father, but ultimately the whole family moved to Australia.  You attended Taylors Lakes High School until Year 10 or 11. You then worked with your father sorting sheepskin hides for a time and have had sporadic work driving a truck doing deliveries and as a security guard.  Ms Clark stated that you are married with six children, who are aged between two and 10 years.  You and your wife and children had been living with your mother in Bacchus Marsh after you were granted bail on 1 October 2020.  However, on 10 August 2021 your bail was revoked.  You were charged with further offences on 25 May 2021.  This was while you were still on bail and only one month after having exited the CISP program, claiming that you no longer needed the support of that program.  You were charged with more offences on 29 July 2021.  Apparently all of those outstanding matters were to be listed at Sunshine Magistrates’ Court on 20 May 2022.  Ms Clark was unable to inform the Court as to the nature of the further alleged offending or what course you proposed to adopt in relation to it, although she anticipated that efforts would be made to finalise the matter sooner rather than later and I understand that an indication that you intend to plead guilty to some of the offences has now been given by you.

13Ms Clark urged the Court to note that you were not the instigator of the assault and that your most serious offending in the past had been for dishonesty, with no offences of violence.  When asked by me why it is that you did offend, Ms Clark stated that she was unable to offer an explanation other than that you had consumed a considerable amount of Jim Beam.  She invited the Court to find that it was not “clear headed behaviour” on your part.  She stated that, although she could not tell the Court that you had a solid work history, you had apparently done some casual delivery work for an unspecified period whilst you were on bail and she submitted that you were not averse to work.  She stated that your wife and children are no longer living with your mother and had moved to Rockbank to live with your father, who is apparently a pastor in the Tongan church. 

14Ms Clark stated that, although you had conducted a contested committal where the victim had been put through cross-examination, you had ultimately pleaded to the lesser charge of intentionally causing injury, rather than the original charge of intentionally causing serious injury.  Further, that, given that your indication of a plea of guilty had been made on 16 November 2021 during the time of pandemic restrictions when it was virtually impossible to conduct criminal trials, the principles in Worboyes v The Queen[3] should be applied to give increased utilitarian weight to your plea of guilty, warranting a perceptible amelioration of sentence over and above what, otherwise, would apply.  In written submissions, Ms Clark urged that the Court should regard your pleas of guilty as evidence of remorse. 

[3][2021] VSCA 169

15Ms Clark submitted that the principle of totality should be applied by taking into account that you had already served periods in custody by way of sentences for other offences, as well as being on remand.  She asked that the Court take into account that imprisonment was more burdensome because of the restrictions of the COVID pandemic and, also, because of the separation from your family. She stated that you have missed your six young children and many of their significant milestones whilst you have been in custody, and, also, are concerned about your father who is apparently in poor health.  She further submitted that you have good prospects of rehabilitation given your relatively limited prior criminal history which, on its face, does not involve violence, and the fact that you successfully engaged with the CISP program.

16Mr Fonua, whilst there is no doubt that Mr Livori began the assault upon the victim, through some misguided sense of grievance, you very quickly joined in after the victim was curled up on the floor holding his mouth.  It became apparent that, at some point, you developed your own agenda in relation to the victim.  Soon after you joined Mr Livori in kicking and punching him whilst he was down, you began shouting at him to give you his car keys, which you subsequently stole during the assault and then used to steal his car.  It was a brutal and totally unprovoked assault on an already disabled victim, who had done you no harm whatsoever.  Indeed, you conceded to police in a record of interview that, at some earlier time, he had assisted you in jump-starting your vehicle.  There is simply no explanation provided for your conduct which was so cowardly and lacking in empathy for a fellow human being.  Your mindset which prompted such cruelty remains totally unexplained, other than that you had drunk a quantity of Jack Daniels beforehand.  Although it is not suggested that you were party to Mr Livori pouring petrol over the victim and threatening to set him alight, you left the victim in the company of Mr Livori and Mr Vea when you well knew that he was injured from the assault which you had helped perpetrate.  I here add that you are a man of extremely large build.  There can be no doubt about the extent to which you added to the atmosphere of intimidation in Mr Livori’s garage, as well the physical attack upon the victim, who was aware that he was trapped in the garage and was outnumbered by three to one. 

17In sentencing you, Mr Fonua, this wanton violence must be denounced by the Court and emphasis must be placed upon general deterrence so that anyone who is minded to attack another human being in such a vicious and unprovoked way, particularly where the victim is outnumbered and already disabled by being attacked by another person, will not be tolerated and will be appropriately punished.  The brutality inflicted upon your victim was sickening and gratuitous. 

18Mr Fonua, you added to the victim’s injury by depriving him of his newly acquired car, which police later located in a damaged condition.  Most members of our community highly value the convenience which a car brings to their daily lives.  You used force to extract the victim’s keys and then deprived him of his car in a cavalier fashion.  You literally left him stranded in a perilous situation in which he had received injuries and Mr Livori had just poured petrol over him.  You were not responsible for throwing petrol over him or for stabbing his leg, but you had administered multiple punches and kicks to him.  The physical and psychological suffering of the victim is very apparent from his Victim Impact Statement.  Although you have no prior appearances for violence, you certainly have a past history of dishonesty, which includes theft and burglary.  Robbery and car theft are prevalent offences and, like the assault charge, warrant denunciation and emphasis upon general deterrence and just punishment.  In the light of your prior history of dishonest offending, there is also a need for emphasis upon specific deterrence for these offences.  It is an aggravating feature of your offending that you were on bail at the time of this offending.  However, as you have pleaded to a summary offence relating to this, I am mindful of the need to avoid double punishment.

19I accept that your pleas have utilitarian value, which are enhanced as they have been entered during the time of the COVID restrictions when the running of criminal trials in this state has been hampered.  However, I do not consider that there is any evidence of remorse.  I lost track of the number of lies which you told police during your lengthy record of interview.  Whilst by your plea of guilty you have accepted legal responsibility, I find no evidence that you have any particular insight into your offending or the impact that it has had upon your victim.  Further, although you are to be given credit for the extent to which you engaged with the CISP program, the number of sessions which you attended for drug and alcohol counselling was very limited in the context of a long-term substance abuse problem and you declined to engage in any further psychological counselling after one session, claiming that you did not need it. 

20I do not find that you have good prospects of rehabilitation as urged by your counsel.  Your work history as detailed to the Court was vague and patchy.  In the past, you had been given the opportunity to undergo treatment and rehabilitation as part of a Community Correction Order but you failed to avail yourself of that opportunity.  I have previously noted the aggravating factor of having committed these offences whilst on bail for quite a number of other matters, some of which you, now, apparently have indicated you propose to plead guilty to at a consolidated plea hearing on 3 June 2022.  These include a charge of assault and making a threat to kill, as well as dishonesty offences.  In addition, subsequent to the offending for which I must sentence you, you have served a sentence of 100 days’ imprisonment handed down at Sunshine Magistrates’ Court on 25 May 2020 for offences of dishonesty, possessing a firearm and ammunition, possessing illicit drugs and driving offences.  Obviously, it is no part  of my task to punish you for any of these matters but they do reinforce the view that I have formed concerning your poor prospects of rehabilitation.

21In all of the circumstances the overall gravity of your offending is such that I find that the only appropriate sentence is one of imprisonment with a head sentence a non‑parole period.

22I take into account that both when initially remanded in custody from 9 March 2020 to 1 October 2020 and again on 10 August 2021 to the present time, you have endured more burdensome imprisonment by reason of the restrictions occasioned by the pandemic.  Reduced out of cell time, a lack of availability of rehabilitative programs and the lack of contact visits from family and friends have made imprisonment more onerous. Indeed, your counsel told the Court that Port Phillip Prison, where you are currently being held, has, yet again, been subject to lockdown due to COVID-19 concerns.  Whilst you will undoubtedly miss your wife and six young children and I have taken into account the hardship of not having contact visits from them, you have only yourself to blame for being separated from them by reason of your offending.  You have not been a good role model for your children and, looking at your patchy work history, it would seem that you have not been a particularly good provider for them, either.

23In sentencing you, I take into account the principle of totality in that you have spent time in custody relating to the sentences imposed at Sunshine Magistrates’ Court on 25 May 2020 and, whilst the three offences on the indictment are discrete offences, they all occurred within a short period of time on the same day.  As far as the summary matter of committing an indictable offence whilst on bail is concerned, I have already acknowledged the need to avoid double punishment in the light of the fact that your being on bail is an aggravating factor of your commission of the indictable offences. 

24On Charge 1, intentionally causing injury, you are convicted and sentenced to be imprisoned for a period of 2 years.

25On Charge 2, robbery, you are convicted and sentenced to be imprisoned for a period of 18 months.

26On Charge 3, theft of a motor vehicle, you are convicted and sentenced to be imprisoned for a period of 18 months.

27On Summary Charge 9, committing an indictable offence whilst on bail, you are convicted and sentenced to be imprisoned for a period of 1 month.

28The base sentence is that of 2 years imposed on Charge 1.  I direct that 6 months of the sentence imposed on Charge 2, 6 months of the sentence imposed on Charge 3 and the 1 month sentence imposed on the summary offence be served cumulatively upon the base sentence and upon each other. 

29The total effective sentence is thus 3 years and 1 month’s imprisonment.  I direct that you serve a period of 2 years before becoming eligible for parole.

30I declare pre‑sentence detention of 313 days to be time reckoned as already served under the sentences imposed this day. 

31Pursuant to s6AAA of the Sentencing Act, I state that, had it not been for your pleas of guilty, the total effective sentence imposed would have been 5 years’ imprisonment with a non‑parole period of 3 years and 8 months.

32Mr Vea, you are presently aged 27 years having been born in October 1994.  You come before the Court with one prior court appearance in the Magistrates’ Court on 15 August 2018 for two charges of contravening a Family Violence Intervention Order, unlawful assault, and failing to answer bail.  Without conviction you were sentenced to undertake a Community Correction Order for a period of 12 months with special conditions of unpaid community work, supervision, assessment and treatment for drug abuse and to attend offending behaviour programs as directed. 

33A plea in mitigation on your behalf was conducted by Ms Brown.  She urged the Court to note that you were aged 25 years at the time of offending and, in the light of your limited criminal history, that you be given the opportunity to endeavour to rehabilitate yourself by a sentencing disposition of a Community Correction Order.  Ms Brown submitted that this disposition was warranted by virtue of the limited role that you had played in the assault, namely, simply following Mr Livori’s instruction to close the door of the garage.  In addition, she urged that you had made substantial changes to your life since the commission of the offence.

34It is plain that the prosecution does not suggest that you had any knowledge that Mr Livori proposed to pour petrol over the victim or stab him with a screwdriver or produce a hammer or tomahawk.  It is true that you did not lay a hand upon the victim or physically assault him in any way.  However, after you had already witnessed him being subjected to a violent blow from Mr Livori which sent him to the floor and, knowing that he was outnumbered by three to one, you followed Mr Livori’s direction to close the garage door without hesitation.  You thereby played a crucial role in ensuring that the victim was at the mercy of Mr Livori, who was quickly joined in his assault by Mr Fonua.  You stood by and were tacitly complicit as these two men repeatedly kicked and punched the victim with unremitting brutality until such time as Mr Fonua managed to extract the victim’s car keys by force and then left the property.  You did nothing to distance yourself from the physical assault by Mr Livori and Mr Fonua of the disabled victim and, having closed the door of the garage, remained in the garage in circumstances where it was apparent to the victim that he had no way of escaping through that door.  You thereby facilitated the appalling conduct of Mr Livori and Mr Fonua.  By your presence, you added to the victim being outnumbered.  I here note that, while you are not of the extremely large build of Mr Fonua, you are nevertheless of a very solid, powerful, muscly build and, your ongoing presence added to his intimidation and the expectation that he could not expect help from anyone.  It was only after Mr Fonua had left the garage, that the victim managed to escape through a back door in the garage in order to flee from the property.  There has been no explanation proffered for your appalling moral cowardice towards another human being who was being mercilessly assaulted by two people at once whilst he was already incapacitated.

35Shortly after the assault, you were apprehended by police and participated in a record of interview.  You repeatedly lied to the police, claiming not to know anything at all about the assault upon the victim and claimed not to even know Mr Livori’s name.  You were repeatedly evasive when asked questions.  You behaved like an arrogant smart alec.  At one stage, when police asked you to describe Mr Livori’s house, you responded “I can’t be bothered with this.”[4] When asked, again, for the name of Mr Livori, in whose company you were found when police arrested you, you repeated that you could not give his name, you were not sure. When police indicated that it was “a bit strange” that you would go to his house but not know him, you airily responded, “No, it’s just the trend this year … like a 2020 thing a New Year thing” in that you just call each other “mate” and “mate”.[5]  Having been well aware of what went on in that garage whilst you were present for the duration of the brutal assault of the victim, when police detailed the nasty nature of his injuries and asked whether you knew anything about them, you disingenuously replied “No, I do not, but I hope this male person is all right.”[6]

[4]Record of Interview Q and A 52, Depositions page 157

[5]Record of Interview Q and A 176 - 181

[6]Record of Interview Q and A 136, Depositions page 165

36In the course of the plea hearing, I commented upon your lack of remorse to your counsel and she disavowed reliance upon remorse.  It should be noted that a psychological report from Lisa Jackson dated 22 April 2022[7] records a history in which you minimise your offending.  You claimed that, because you were affected by cannabis and methylamphetamine, you had only a fragmented recall of the events.  I here interpolate that you seemed to have no difficulty responding to Mr Livori’s direction to close the door immediately.  You then went on to tell the psychologist that you “remember closing the garage door where the assault was occurring after hearing children’s voices in the area and not wanting to expose them to the incident.”  This is a sanitisation of your involvement, to put it kindly.

[7]        Exhibit “D1-2”

37You told the psychologist that you are a Tongan man, who was born in New Zealand and that your family migrated to Australia when you were three years old.  You are apparently the middle child of 11 children, with five children born to your parents and another four born to your parents’ previous partners.  Soon after you arrived in Australia, your father died and your mother developed another relationship when you were aged about seven.  You stated that, although money was tight, the family never went without and were supported by their church.  When you were 13 years old, your mother separated from your stepfather and relocated with you to Perth and formed a new relationship.  You recalled this as a happy time.  Subsequently, at age 16, you left home to live with your girlfriend and her family.  Four years later, you separated after you cheated on your partner.  You described increasing drug problems and a deterioration in your mental health, claiming that you were “lost” for two years.  At age 19 you formed another relationship and had a child, who is now four years of age.  However, there was an acrimonious separation resulting in a Family Violence Intervention Order.  You described yourself as now being in another relationship with a partner who is a stabilising influence. 

38The psychologist, Ms Jackson, took a history from you that, at age 16, you had been introduced to cannabis and, at age 20, you commenced using methylamphetamine and got to the point of using it at least five days a week.  Ms Jackson considered that what you had told her about your history of drug use “was symptomatic of a substance use disorder that was evident at the time of the offences in February 2020”.[8]  She went on to note that, subsequent to this offending, you had experienced episodes of drug induced psychosis. 

[8]Exhibit “D1-2” paragraph 28, page 7

39Tendered on your behalf was a letter from Dr Sandeep Rondla, general practitioner from Palmers Medical Centre, dated 19 March 2021.[9]  This stated that you had presented with substance withdrawal psychosis on 15 January 2021 and were referred to Midwest Mental Health Services for further management.  The discharge summary from Midwest Mental Health Services noted that you presented with acute psychotic symptoms, including hallucinations and a belief that you had electronic devices in your body and that you were being monitored by others, leading to low mood and transient suicidal ideation, with such symptoms having apparently been present for three weeks after you ceased using ice.  You seem to have had contact with that service to be assessed on 16 January 2021 and were reviewed on 18 January 2021 and were commenced on 10 milligrams of Olanzapine for your symptoms.  Thereafter, you were supported briefly via a series of phone calls and, by 25 January 2021, although having some mood swings, you believed that you were better able to control your thoughts and no longer feeling suicidal and felt that life was good.

[9]Part of Exhibit “D1-1”

40At the plea hearing Ms Brown relied upon sworn evidence from your partner’s cousin, Ms Marina Christoforou, She stated that you had been in a relationship with her cousin, Bobbie Johnson, for approximately 10 years and were “technically” homeless and affected by drugs at the time of offending.  She stated that, about a year or a year and a half ago, you ceased taking drugs.  This was in the context of her having contacted Ms Johnson and discovered that she and you were “effectively couch surfing”.  She stated that you had told her that, once you began hearing voices and suffering anxiety, you wanted to make a change.  She stated that she had helped you to go to a general practitioner in order to be referred to the local area community health service for medication. She then made a deal with you that, if you could remain off drugs for six months, she would permit you and Ms Johnson to live with her and her three children at Point Cook.  This took place and she stated that she had noted a great improvement after you moved into her family home. 

41Ms Christoforou had helped you to go out and qualify for your white card. Subsequently, you obtained employment with a construction company, Civiltron,, in August 2021. A reference from that employer, dated 26 November 2021, attested to you being a valuable, hardworking employee and was tendered as Exhibit “D1-3”.  Ms Christoforou stated that you left that employment because you found manual work very hard after not having worked for any significant time and, thereafter, obtained some employment in or about December 2021 with “Catch of the Day” warehouse, where she understands that you drive a forklift and unload trucks.  She stated that you had been working there at least five days per week. 

42Ms Christoforou stated that you had obtained your driver’s licence three weeks ago and, some two or three weeks ago, you had managed to achieve having access visits to your four year old from your earlier relationship.  As previously mentioned, this is not the child of Ms Johnson, but of another person with whom you had a relationship when your current partner and you had broken up.  Having stated that you had been in a relationship with Ms Johnson for some 10 years, Ms Christoforou conceded that the relationship had been “on and off” and it may be that you and Ms Johnson had got back together some two or three years ago.  She stated that Ms Johnson has never been a user of illicit drugs and has worked for the same company as a forklift driver for almost seven years.  She was unable to tell me what work you had undertaken in the past, but understood that your more recent employment was the first stable employment you had had for a while.

43Ms Christoforou seemed to be a good person, but I found her evidence to be somewhat vague in many respects. I was puzzled as to why no reference from your current employer was tendered.  I do accept that, apparently, you have had some drug dependency issues over quite some years. Notwithstanding,  that you had been placed on a Community Corrections Order on 15 August 2018, which involved conditions of supervision and attending assessment and treatment and offending behaviour programs, you failed to engage with that order and are yet to face a contravention charge in relation to it, nor did being charged with this serious offending caused you to address your illicit drug use with any urgency. Indeed, the psychologist’s report mentions that, on 14 October 2020 whilst on bail, you were charged with possession of cannabis and methylamphetamine, failing to wear a bicycle helmet and committing an indictable offence on bail. Finally some four months later, on 15 January 2021, with Ms Christoforou’s assistance, you went to the general practitioner because you were suffering drug induced psychosis. 

44You are to be given credit for the rehabilitative gains that you have made by way of addressing your drug problem and obtaining some stable employment, however, I consider the offence of intentionally causing injury to be a serious example of that offence by reason of the victim being outnumbered three to one and the injury occasioned by the assault was far from minor as it involved the loss of multiple teeth.  Your action in shutting the door of the garage enabled the attack by both Mr Livori and Mr Fonua together to take place by repeated kicking and punching.  The community must be protected from this wanton brutal violence and it is of concern that you have shown no empathy with or concern for the victim.  Having mentioned this as an absent factor during the plea hearing, I asked that you be assessed for suitability for a Community Correction Order. In the context of being so assessed on the second day of the plea hearing, the author of the Corrections report noted that “you expressed remorse for your actions, stating that the victim would’ve felt ‘horrified’”. In these circumstances I place little weight on that late expression of remorse. Although you pleaded guilty to a lesser charge after having conducted a contested committal, the cross-examination of the victim on your behalf at committal was such that he had to relive the whole dreadful ordeal that he went through in Mr Livori’s garage.  Somewhat extraordinarily, given that you were very well aware that you had been in that garage from the time the assault commenced until the time the hapless victim managed to make an escape, it was put to the victim in cross-examination on your behalf, “It’s possible, isn’t it, that the third man [that is you] actually left the garage at some point around the time that that door was closed?”, to which the victim answered, “No”.[10] 

[10]Depositions page 575, lines 19-25

45I have already expressed my concern about the lack of explanation for your involvement in this offending, save for you having had some drug issues.  There are many people before the Courts with drug issues, but they do not all stand by like a coward while two others repeatedly kick and punch a defenceless human being as you did. You have a prior court appearance involving offences of violence and  I consider that you have not demonstrated any real insight into your own psychological makeup which caused you to be involved in this offending.  However, you are younger than Mr Fonua and you have demonstrated some recent attempts at rehabilitation.  Although I find the gravity of the offending to be such that only an immediate custodial sentence is appropriate to reflect the principles of denunciation and general deterrence and just punishment, your lesser involvement in the offending compared to Mr Fonua and your superior prospects of rehabilitation compared to Mr Fonua, cause me to conclude that it should be a relatively short sentence of imprisonment coupled with a Community Correction Order to enable you to continue your rehabilitation. One can only hope that you will engage with this order in a more meaningful way than you did with the order made in 2018.

46In arriving at the sentence which I intend to impose, I acknowledge that your plea of guilty was entered during the turbulent times of pandemic restrictions and should carry enhanced utilitarian value in accordance with the principles in Worboyes case.  The utilitarian value of your plea should be reflected in a shorter sentence than otherwise have would been imposed, even though I am not satisfied that there is any remorse attached to it.  I also take into account that, after I remanded you in custody on 27 April 2022, you were required to undergo 14 days in isolation and that this  is a very difficult way to commence serving time in custody, particularly a first time in custody.  I also take into account that restrictions by way of out of cell hours and lack of contact visits and reduced rehabilitative programs are likely to make a term of imprisonment more onerous than it would have been without such restrictions.

47On one charge of intentionally causing injury, you are convicted and sentenced to be imprisoned for a period of 3 months and to undertake a Community Correction Order for a period of 2 years.

48I declare a period of 34 days’ pre-sentence detention to be time reckoned as already served under the sentence imposed this day.

49The terms of the community correction order are as follows:

(a)   You must not commit whether in or outside Victoria during the period of the order an offence punishable by imprisonment.

(b)   You must comply with any obligations or requirements prescribed by the regulations.

(c)   You must report to and receive visits from the Secretary during the period of the order.

(d)   You must report to the Community Corrections Centre specified in the order within 2 clear working days after the order coming into force.

(e)   You must notify the Secretary of any change of address or employment within 2 clear working days after the change.

(f)    You must not leave Victoria except with the permission of, generally or in relation to the particular case, the Secretary.

(g)   You must comply with any direction given by the Secretary that is necessary for the Secretary to ensure that you comply with the order.

50In addition, the following special conditions apply:

(1)     You are to perform 150 hours of unpaid community work.

(2)     You are to undergo assessment and treatment for drug abuse or dependency as directed including undertaking urinalysis.

(3)     You are to be supervised as directed by the Secretary.

51Mr Vea, this Community Correction Order will commence upon your release from custody.  I am not able to make such an order unless your consent to it.  Are you prepared to consent to such an order?

52OFFENDER:  Yes, Your Honour.

53HER HONOUR:  Do you understand its terms and conditions?

54OFFENDER: Yes, Your Honour.

55HER HONOUR: You must understand that, in the event that you contravene the Community Correction Order then that, in itself, is an offence punishable by a term of imprisonment of 3 months.  Should that occur, it is likely that you will be brought back before me and it may well be that the order will be set aside and you will be resentenced to a longer term of imprisonment.  Do you understand?

56OFFENDER: Yes.

57HER HONOUR: Pursuant to s.6AAA of the Sentencing Act, I state that, had it not been for your plea of guilty, the sentence imposed would have been 2 years’ imprisonment, with a non-parole period of 1 year.

58Mr Fonua, on convicting you of Charges 1, 2 and 3 and Mr Vea, upon convicting you of Charge 1, I order pursuant to s78(1) of the Confiscation Act 1997 the forfeiture to the State of the property referred to in the Schedule of the order and I further direct that it be placed in the custody of the Chief Commission of Police and be held by him until 28 days from this date or the conclusion of any appeal proceedings where it may be tested and/or analysed and then destroyed. The schedule refers to items of clothing, shoes, a mobile phone and DNA swabs taken from various items.

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